SCC Departs from Normal Procedure in TWU Intervener Motions

On Thursday, July 27, Justice Wagner of the Supreme Court of Canada granted intervener status to nine out of twenty-six potential interveners in the case of Trinity Western University v. Law Society of Upper Canada (“TWU”). The list of approved interveners included organizations such as the Criminal Lawyers, the Christian Legal Fellowship, and the Canadian Civil Liberties Association. It did not, however, include organizations like Lesbians Gays Bisexuals and Trans People of the University of Toronto or the Start Proud and OUTlaws group. Indeed, none of the motions of intervention filed by LGBTQ advocacy groups were granted.

This dismissal proved itself contentious, as an important question in the case is whether Trinity Western University, an Evangelical College, discriminates against LGBTQ people by requiring all students to agree to a covenant that bars any sexual activity outside of a marriage between two people of the opposite sex. While no group is owed intervener status—it is awarded at the discretion of the Court, based on which groups the Court believes can assist it in coming to a just decision—the decision not to include any LGBTQ groups in the proceedings was controversial.

Then proceedings became somewhat irregular: on July 31, Chief Justice McLaughlin varied Justice Wagner’s decision to grant intervener status to all the groups denied intervener status. This meant that not only were groups like the BC LGBTQ Coalition granted intervener status, but other faith-based organizations—like the Seventh-day Adventist Church in Canada and the World Sikh Organization of Canada—were as well. Further, an extra day was added to the TWU proceedings to accommodate these interveners. This additional day meant that the Chief Justice was not necessarily overruling Justice Wagner’s decision—intervener status for these groups was denied for November 30, and that remains the case—but rather varying it to allow these groups the chance to present to the Court on December 1 instead.

The irregularities kept piling up. Normally the Supreme Court does not give reasons for why it awards intervener status or not. However, following the variation of the order, the media picked up on the decision and speculated over why this variation took place. The Supreme Court then took the even rarer step of issuing a news release to explain the Court’s actions: while it acknowledged that reasons are not normally given in motions for intervention, “the concerns raised by some LGBTQ+ groups and others call for a response.” The release explained that the appellants and respondents have a duty to fully canvass the issues raised by the appeal, and that the Court must be mindful that its time is used efficiently; the addition of an extra day would then allow more interveners to be added, while still respecting the efficient use of the Court’s time.

Justice Wagner also took the unusual step of explaining to the Globe and Mail what had happened behind the scenes. First, he believed that—among the original nine interveners chosen—the views of LGBTQ advocates would be well represented. When he was aware of the public response, he reached out to the Chief Justice to see what could be done to address the public’s concern. They decided to add a day to the proceedings, which would allow them to grant intervener status to more groups. “There was no intent to exclude,” he told the Globe.

In short, the Supreme Court departed from its normal procedure in motions for intervention. This departure was spurned by the optics of its decision to dismiss the applications of various LGBTQ advocacy groups. The Court then sought to restore its image of impartiality by including not merely the LGBTQ groups, but also the faith-based groups that had been similarly dismissed. In doing so, the Court revealed something of its inner workings—and specifically, how it tries to deal with the rare occasion those inner workings are put in the spotlight.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.